Joint announcement of Linde Offeror’s firm intention to make an offer to Afrox shareholders
AFRICAN OXYGEN LINDE PLC LINDE SOUTH AFRICA
LIMITED (Incorporated in the Republic PROPRIETARY LIMITED
(Incorporated in the of Ireland) (Incorporated in the Republic of
Republic of South Africa) (Registration number 602527) South Africa)
(Registration number: NYSE Share code: LIN (Registration number:
1927/000089/06) FSE Share code: LIN 2020/211363/07)
JSE Share code: AFX ISIN: IE00BZ12WP82 (“Linde Offeror”)
NSX Share code: AOX (“Linde”)
ISIN: ZAE000067120
(“Afrox” or the “Company”)
JOINT ANNOUNCEMENT OF LINDE OFFEROR’S FIRM INTENTION TO MAKE AN OFFER TO AFROX SHAREHOLDERS TO ACQUIRE
THE ISSUED ORDINARY SHARES IN AFROX NOT ALREADY OWNED BY THE LINDE GROUP OR A SUBSIDIARY OF AFROX, BY
WAY OF A SCHEME OF ARRANGEMENT AND STANDBY OFFER, AND THE DELISTING OF ALL AFROX ORDINARY SHARES
1. INTRODUCTION
1.1. Shareholders of Afrox are hereby advised that Afrox and Linde Offeror have concluded
an implementation agreement (“Implementation Agreement”) in terms of which Linde
Offeror has notified Afrox of its firm intention to make an offer (“Linde Offer”) to holders of
issued ordinary shares of Afrox (“Afrox Shareholders”) other than (i) a member of the
Afrox group, including subsidiaries of Afrox that hold treasury shares; or (ii) a member of
the Linde group, including B O C Holdings (“Linde UK SubCo”) (collectively,
“Excluded Shareholders”) to acquire all of the issued ordinary shares in Afrox (“Afrox
Ordinary Shares”) other than those Afrox Ordinary Shares held by Excluded Shareholders
(“Excluded Shares”), on the basis described in this announcement.
1.2. The Linde Offer will be made to Afrox Shareholders other than the Excluded Shareholders
(“Eligible Afrox Shareholders”) and will be implemented by way of a single offer
comprising:
1.2.1. Scheme Transaction
1.2.1.1. the implementation of a scheme of arrangement (“Scheme”) in terms of Section
114(1) as read with Section 115 of the Companies Act 71 of 2008 (“Companies Act”)
to be proposed by the board of directors of Afrox (“Afrox Board”) between Afrox and
the Eligible Afrox Shareholders (“Scheme Offer”) in terms of which Linde Offeror will
acquire the Scheme Shares for the Scheme Consideration (both as defined in
paragraph 4 below) upon the terms and subject to the conditions precedent (“Scheme
Conditions”) set out in the circular to be distributed to Afrox Shareholders in due
course and by no later than 13 November 2020 (“Circular”); and
1.2.1.2. the declaration and payment of the Scheme Special Dividend (defined in paragraph
3 below), subject to the Scheme Transaction (as defined below) becoming operative;
and
1.2.1.3. the Delisting, as defined in paragraph 1.3 below,
the Scheme Special Dividend, the Scheme and the Delisting comprising the “Scheme
Transaction”; and
1.2.2. Standby Offer Transaction
if a Standby Offer Trigger Event, as defined in paragraph 5.1.1, below occurs:
1.2.2.1. a conditional general offer (“Standby Offer”) by Linde Offeror to the Eligible Afrox
Shareholders to acquire all or a portion of the Afrox Ordinary Shares other than
Excluded Shares (“Standby Offer Shares”), in accordance with the provisions of
Section 117(1)(c)(v) of the Companies Act and Paragraph 1.15(c) of the JSE Listings
Requirements, upon the terms and subject to the conditions precedent (“Standby
Offer Conditions”) to be set out in the Circular; and
1.2.2.2. the declaration and payment of the Standby Offer Special Dividend (defined in
paragraph 3 below), subject to the Standby Offer Transaction (as defined below)
becoming operative; and
1.2.2.3. the Delisting, as defined in paragraph 1.3 below,
the Standby Offer Special Dividend, the Standby Offer and the Delisting comprising the
“Standby Offer Transaction”.
1.3. If the Linde Offer is implemented, all of the Afrox Ordinary Shares will be delisted from the
securities exchange operated by JSE Limited (“JSE”) and the Namibian Stock Exchange (“NSX”):
1.3.1. in terms of Paragraph 1.17(b) of the JSE Listings Requirements, pursuant to the
implementation of the Scheme Transaction; and
1.3.2. if the Scheme Transaction does not become operative and the Standby Offer
Transaction becomes operative:
1.3.2.1. pursuant to the adoption of a delisting resolution by the requisite majority of Afrox
shareholders at a general meeting, as contemplated in Paragraphs 1.15(a) and 1.16
of the JSE Listings Requirements (“Delisting Resolution”); or
1.3.2.2. in terms of Paragraph 1.17(a) of the JSE Listings Requirements, if Linde Offeror
waives the requirement for the Delisting Resolution to be adopted and subsequently
(if the Standby Offer is accepted by Standby Offer Participants holding at least 90%
of the Standby Offer Shares) invokes the provisions of Section 124 of the Companies
Act to acquire all of the remaining Afrox Ordinary Shares (other than the Excluded
Shares),
in each case, the “Delisting”.
1.4. The Linde Offer will be implemented through the Scheme Transaction and the Standby
Offer Transaction on the basis that implementation of the Standby Offer Transaction will be
conditional upon, among other things, the Scheme Transaction not becoming operative.
If the Scheme Transaction becomes operative and is implemented, the Standby Offer
Transaction will lapse. Alternatively, if the Scheme Transaction does not become operative
and the Standby Offer becomes operative, the Standby Offer Transaction will be
implemented.
1.5. Both the Scheme Transaction and the Standby Offer Transaction constitute “affected
transactions” that are made in accordance with and subject to applicable provisions of
Parts B and C of Chapter 5 of the Companies Act and Chapter 5 of the Companies
Regulations, 2011 (“Takeover Regulations”), and are regulated by the Takeover
Regulation Panel (“TRP”) and the JSE, where applicable.
1.6. As required by the Takeover Regulations, Afrox has constituted an independent board
(“Independent Board”) for the purposes of considering and expressing an opinion on the
Linde Offer, further details of which are set out in paragraph 10 below.
1.7. The purpose of this firm intention announcement is to advise Afrox Shareholders of the
Linde Offer and of the salient terms and conditions pertaining thereto.
1.8. This firm intention announcement and any subsequent announcements in relation to the
Linde Offer will: (i) be released on the Stock Exchange News Service of the JSE and NSX
(“SENS”); and (ii) where required, be published in the South African press, as soon as
possible after having been released on SENS.
2. LINDE’S RATIONALE FOR THE TRANSACTION
2.1. Due to Afrox’s low share liquidity, which deters potential investors, Linde is of the view that
Afrox is more suited to an unlisted environment and that its continued listing provides little
benefit to Afrox Shareholders. Related hereto, the Linde Offer will provide Afrox
Shareholders with a valuable liquidity event.
2.2. Linde further seeks to improve integration amongst the Afrox operations with other Linde
group operations, which can be better achieved and more easily expedited in an unlisted
environment.
2.3. Additionally, as indicated in paragraph 4.2 of this announcement, the Linde Offer will
provide Eligible Afrox Shareholders with an opportunity to dispose of their Afrox Ordinary
Shares for cash at a significant premium and with manageable transaction risk.
3. TERMS AND CONDITIONS OF THE SPECIAL DIVIDEND
3.1. The Afrox Board will declare a special dividend which will be subject to implementation of
the Scheme or the Standby Offer (as the case may be) in an aggregate amount of
R1.18 billion (one billion one hundred and eighty million Rand), which represents R3.82
(three Rand and eighty-two Cents) per Afrox Ordinary Share, as adjusted by any Special
Dividend Adjustment (as defined below), if applicable (“Special Dividend”), which will be
payable by Afrox to all Qualifying Afrox Shareholders (as defined in paragraph 3.4 below):
3.1.1. on the Scheme Implementation Date (as defined below), subject to the Scheme
Transaction becoming operative (“Scheme Special Dividend”); or
3.1.2. on the Standby Offer Implementation Date (as defined below), subject to the Standby
Offer Transaction becoming operative (“Standby Offer Special Dividend”).
3.2. The Special Dividend may be adjusted if any distribution (other than the Special Dividend)
is declared by the Afrox Board after the date on which the Implementation Agreement is
signed by the later of the parties to sign it (“Signature Date”) and where the record date
(as such term is defined in the JSE Listings Requirements) of such distribution is on or
before the Scheme Special Dividend record date or Standby Offer Special Dividend record
date, if applicable, (such a distribution being a “Post Signature Date Dividend”), in which
event the aggregate amount of the Special Dividend of ZAR1.18 billion (one billion one
hundred and eighty million Rand) shall be automatically reduced by an amount equal to the
Post Signature Date Dividend, with the Special Dividend per Afrox Ordinary Share being
reduced proportionately (“Special Dividend Adjustment”).
3.3. Any Special Dividend Adjustment will be announced and published on SENS and, where
required, in the South African press on, prior to or after the Scheme Transaction (or Standby
Offer Transaction, if applicable) finalisation date (as contemplated by the JSE Listings
Requirements), depending on the record date of any Post Signature Date Dividend, being
the date on which the “finalisation information” (as contemplated by the JSE Listings
Requirements) is released on SENS, after (i) all the Scheme Conditions to the Scheme
Transaction are fulfilled or, if applicable, waived (“Scheme Transaction Finalisation
Date”), or (ii) all the Standby Offer Conditions to the Standby Offer Transaction are fulfilled
or, if applicable, waived, as the case may be.
3.4. “Qualifying Afrox Shareholders” means:
3.4.1. if the Scheme Transaction becomes operative, all Afrox Shareholders (other than the
holders of treasury shares) as at the Scheme Special Dividend record date but excluding
dissenting shareholders who have not, either on or prior to the Scheme Special Dividend
record date or subsequent to the Scheme Special Dividend record date, whether
voluntarily or pursuant to a final order of the Court (as defined below), withdrawn their
demands made in terms of Sections 164(5) to 164(8) of the Companies Act or allowed
any offers made to them in terms of Section 164(11) of the Companies Act to lapse,
being persons who are entitled to receive the Scheme Special Dividend; or
3.4.2. if the Scheme Transaction does not become operative and the Standby Offer
Transaction becomes operative, all Afrox Shareholders (other than the holders of
treasury shares) as at the Standby Offer Special Dividend record date.
4. TERMS AND CONDITIONS OF THE SCHEME TRANSACTION
4.1. Overview and Effects of the Scheme Transaction
4.1.1. The Scheme Transaction is subject to the fulfilment or waiver, as the case may be, of
the Scheme Conditions set out in paragraph 4.3 below. If the Scheme Conditions are
fulfilled or waived, the Scheme Transaction shall become operative:
4.1.1.1. with effect from the date on which the Scheme is to be implemented
(“Scheme Implementation Date”) upon the terms and conditions to be set out in the
Circular by, inter alia:
4.1.1.1.1. Afrox paying to Qualifying Afrox Shareholders the Scheme Special Dividend for
each Afrox Ordinary Share held as at the Scheme Special Dividend record date,
as described in paragraph 3 above; and
4.1.1.1.2. Linde Offeror acquiring each Afrox Ordinary Share forming the subject matter of
the Scheme (collectively, the “Scheme Shares”) from the holders thereof
(“Scheme Participants”) for the Scheme Consideration, as described in
paragraph 4.2 below; and
4.1.1.2. an application will be made to the JSE for the delisting of the Afrox Ordinary Shares
from the JSE and, simultaneously therewith, the Afrox Ordinary Shares will be
delisted from the NSX.
4.1.2. In this regard:
4.1.2.1. Scheme Participants shall be entitled to receive the Scheme Consideration from
Linde Offeror (via Computershare Investor Services Proprietary Limited);
4.1.2.2. the Scheme Participants shall be deemed to have disposed of and transferred their
Scheme Shares (including all rights, interests and benefits attaching thereto), free of
encumbrances and without any further act or instrument being required, to Linde
Offeror, whether they voted in favour of the Scheme or not, or abstained or refrained
from voting; and
4.1.2.3. Linde Offeror shall acquire and/or be deemed to have acquired the registered and
beneficial ownership, free of encumbrances, of all the Scheme Shares against
settlement of the Scheme Consideration.
4.2. Scheme Consideration
4.2.1. The Scheme Offer will be made at a cash consideration of ZAR21.18 (twenty one Rand
and eighteen Cents) (“Scheme Consideration”) for each Scheme Share.
4.2.2. The 30-day volume weighted average traded price (“VWAP”) of Afrox Ordinary Shares
as at 15 October 2020 is ZAR17.21 (seventeen Rand and twenty one Cents).
Subsequent to a reduction by an amount equal to the Scheme Special Dividend, the
adjusted 30-day VWAP of Afrox Ordinary Shares is ZAR13.39 (thirteen Rand and thirty
nine Cents). The Scheme Consideration represents a premium of 58.2% (fifty eight point
two per cent) to the adjusted 30-day VWAP.
4.3. Scheme Conditions
4.3.1. The Scheme Transaction is subject to the fulfilment or, where applicable, waiver or
adjustment, of each of the following Scheme Conditions by no later than 28 February
2021:
4.3.1.1. no Afrox Shareholder having exercised its appraisal rights (“Appraisal Rights”) by
(i) delivering notice objecting, as contemplated in Section 164(3) of the Companies
Act, to the special resolution to be proposed in accordance with Section 114(1)(c) and
Section 115(2)(a) of the Companies Act to Afrox Shareholders at the general meeting
(“General Meeting”) seeking their approval of, inter alia, the Scheme, details of which
will be contained in the notice of the General Meeting (“Scheme Resolution”);
(ii) voting against the Scheme Resolution; and (iii) delivering a valid demand, as
contemplated in Sections 164(5) to 164(8) of the Companies Act, within the time
period prescribed in Section 164(3) and (7) of the Companies Act or, if Appraisal
Rights are validly exercised as aforesaid, they are not exercised in respect of more
than 5% (five per cent) of the issued Afrox Ordinary Shares (excluding the Excluded
Shares);
4.3.1.2. the Scheme Resolution is approved, at the General Meeting, by the requisite majority
of votes of the Afrox Shareholders entitled to vote on the Scheme Resolution, as
contemplated in Section 115(2) of the Companies Act;
4.3.1.3. the Afrox Board (i) having, in accordance with the requirements of Section 46 of the
Companies Act, declared the Scheme Special Dividend, and (ii) not having resolved
or decided to withdraw the resolution approving the Scheme Special Dividend and/or
withhold any portion of the Scheme Special Dividend;
4.3.1.4. if the Scheme Resolution is opposed by 15% (fifteen per cent) or more of the voting
rights exercised on the Scheme Resolution and, within 5 (five) business days after
the vote, any person who voted against the Scheme Resolution requires Afrox to seek
the approval of a South African Court with competent jurisdiction (“Court”) in terms
of Section 115(3)(a) as read with Section 115(5)(a) of the Companies Act, the Court
having approved the implementation of the Scheme Resolution;
4.3.1.5. if any person who voted against the Scheme Resolution applies to Court for a review
of the Scheme Resolution in terms of Section 115(3)(b) and Section 115(6) of the
Companies Act, either:
4.3.1.5.1. the Court having declined to grant leave to that person for a review of the Scheme
Resolution; or
4.3.1.5.2. if leave for a review of the Scheme Resolution is granted by the Court, the Court
having declined to set aside the Scheme Resolution in accordance with Section
115(7) of the Companies Act;
4.3.1.6. the regulatory approvals required to implement the Scheme Transaction having been
obtained, namely:
4.3.1.6.1. the TRP issues a compliance certificate to Afrox with respect to the Scheme, in
terms of Section 121(b) of the Companies Act;
4.3.1.6.2. the Financial Surveillance Department of the South African Reserve Bank
(“FinSurv”) grants such approvals with respect to the Scheme Transaction as are
required in terms of the South African Exchange Control Regulations (promulgated
in terms of the South African Currency and Exchanges Act No. 9 of 1933)
(“Exchange Control Regulations”) to implement the Scheme Transaction either
unconditionally, or subject to conditions acceptable to Linde Offeror; and
4.3.1.6.3. the JSE and, to the extent required also the NSX, grants such approvals as are
required with respect to the Scheme Transaction; and
4.3.1.7. the Implementation Agreement is not terminated in accordance with its terms.
4.3.2. In terms of the Implementation Agreement, Linde Offeror has the right in its sole
discretion prior to the date of the General Meeting to withdraw only the Scheme
Resolution from consideration at the General Meeting by delivering a written notice to
Afrox. Any withdrawal of the Scheme Resolution from consideration at the Afrox General
Meeting shall be announced via SENS and, where required, published in the South
African press.
4.3.3. Save as otherwise provided in the Implementation Agreement, Linde and Afrox shall use
their reasonable endeavours to procure the fulfilment or, where applicable, waiver or
adjustment of the Scheme Conditions as soon as reasonably practicable.
4.3.4. Linde Offeror is entitled to waive or adjust (in whole or in part) any of the Scheme
Conditions referred to in paragraph 4.3.1.1, 4.3.1.3(ii) and 4.3.1.7 of this announcement,
by notice in writing delivered to Afrox, provided that Linde Offeror shall only be entitled
to adjust a Scheme Condition in such a manner as results in the fulfilment of such
Scheme Condition being less difficult or onerous to achieve. The Scheme Conditions
stipulated in paragraphs 4.3.1.2, 4.3.1.3(i), 4.3.1.4, 4.3.1.5 and 4.3.1.6 of this
announcement are regulatory in nature and are not capable of waiver or adjustment.
4.3.5. Save as provided in paragraph 4.3.4, neither Linde Offeror nor Afrox may waive any
Scheme Condition unless that waiver is agreed to in writing by both Afrox and Linde
Offeror and is permissible in law.
4.3.6. An announcement will be released on SENS and, where required, published in the South
African press as soon as possible after the: (i) fulfilment, waiver or adjustment, as the
case may be, of all of the Scheme Conditions; or (ii) non-fulfilment of any Scheme
Condition.
5. TERMS AND CONDITIONS OF THE STANDBY OFFER TRANSACTION
5.1. Overview and effects of Standby Offer Transaction
5.1.1. If, after the Scheme is proposed: (i) any of the Scheme Conditions is not fulfilled or,
where applicable, waived; or (ii) the Scheme otherwise fails (in each case a “Standby
Offer Trigger Event”), then the Scheme will not become effective and, instead, the
Standby Offer Transaction will proceed on the terms and conditions to be set out in the
Circular. In such event, the timeline applicable to the Standby Offer, including when the
Standby Offer will open for acceptance (which will be after the Scheme Transaction has
failed to become operative), will be announced on SENS.
5.1.2. The Standby Offer Transaction is subject to the fulfilment or waiver, as the case may be,
of the Standby Offer Conditions set out in paragraph 5.4 below. If the Standby Offer
Conditions are fulfilled or, where applicable, waived, the Standby Offer shall become
operative:
5.1.2.1. with effect from the date on which the Standby Offer Transaction is to be implemented
(“Standby Offer Implementation Date”) upon the terms and conditions set out in the
Circular by, inter alia:
5.1.2.1.1. Afrox paying to Qualifying Afrox Shareholders the Standby Offer Special Dividend
for each Afrox Ordinary Share held as at the Standby Offer Special Dividend record
date, as described in paragraph 3 above; and
5.1.2.1.2. Linde Offeror (i) acquiring the Standby Offer Shares from the holders thereof for
the Standby Offer Consideration, as described in paragraph 5.3 below, and (ii) if
Eligible Afrox Shareholders holding at least 90% of the Standby Offer Shares
accept the Standby Offer, having the election to invoke the provisions of Section
124(1) of the Companies Act to compulsorily acquire all of the Standby Offer
Shares not already tendered by the Eligible Afrox Shareholders; and
5.1.2.2. an application will be made to the JSE for the delisting of the Afrox Ordinary Shares
from the JSE and, simultaneously therewith, the Afrox Ordinary Shares will be
delisted from the NSX.
5.2. Terms of the Standby Offer Transaction
5.2.1. As part of the Linde Offer, Linde Offeror will make the Standby Offer, being an offer to
Eligible Afrox Shareholders to acquire their Afrox Ordinary Shares by way of a general
offer in terms of Section 117(1)(c)(v) of the Companies Act and Paragraph 1.15(c) of the
JSE Listings Requirements, and in terms of which each Eligible Afrox Shareholder will
be entitled to elect whether or not to dispose of all of their Standby Offer Shares to Linde
Offeror for the Standby Offer Consideration (as defined below) (“Standby Offer
Participants”).
5.2.2. For the avoidance of doubt, implementation of the Standby Offer Transaction will be
conditional on, inter alia, the Scheme Transaction not becoming operative. In the event
that the Scheme Transaction does become operative, the Standby Offer Transaction will
lapse and be of no force and effect.
5.2.3. If the Scheme Transaction does not become operative and the Standby Offer
Transaction becomes operative and is implemented, then the Delisting will be
implemented and each Standby Offer Participant will receive: (i) the Standby Offer
Special Dividend; and (ii) the Standby Offer Consideration (as defined in paragraph 5.3
below) in exchange for the Standby Offer Shares tendered and disposed of to Linde
Offeror.
5.2.4. If the Standby Offer Transaction becomes operative and is implemented, Linde Offeror
will acquire all the Standby Offer Shares tendered and previously held by the Standby
Offer Participants. If Eligible Afrox Shareholders holding at least 90% of the Standby
Offer Shares accept the Standby Offer, Linde Offeror may, at its election, invoke the
provisions of Section 124(1) of the Companies Act to compulsorily acquire all of the
Standby Offer Shares not already tendered by the Eligible Afrox Shareholders.
5.2.5. If the Scheme Transaction does not become operative and the Standby Offer
Transaction becomes operative and is implemented (whereby the Delisting Resolution
is adopted), and Linde Offeror elects not to invoke Section 124(1) of the Companies Act,
Eligible Afrox Shareholders who have not accepted the Standby Offer will remain
shareholders in Afrox, which will be an unlisted company.
5.3. Standby Offer Consideration
5.3.1. Standby Offer Participants shall receive a cash consideration of ZAR21.18 (twenty one
Rand and eighteen Cents) per Standby Offer Share (“Standby Offer Consideration”).
5.3.2. The 30-day VWAP of Afrox Ordinary Shares as at 15 October 2020 is ZAR17.21
(seventeen Rand and twenty one Cents). Subsequent to a reduction by an amount equal
to the Standby Offer Special Dividend, the adjusted 30-day VWAP of Afrox Ordinary
Shares is ZAR13.39 (thirteen Rand and thirty nine Cents). The Standby Offer
Consideration represents a premium of 58.2% (fifty eight point two per cent) to the
adjusted 30-day VWAP.
5.4. Standby Offer Transaction Conditions
5.4.1. Implementation of the Standby Offer is subject to the fulfilment or waiver, as the case
may be, of the following conditions precedent (“Standby Offer Conditions”) by no later
than 28 February 2021:
5.4.1.1. a Standby Offer Trigger Event having occurred;
5.4.1.2. the Delisting Resolution having been approved, at the General Meeting, by the
requisite majority of votes of the Afrox Shareholders entitled to vote on the Delisting
Resolution, as contemplated in Paragraph 1.16 of the JSE Listings Requirements;
5.4.1.3. Eligible Afrox Shareholders accept the Standby Offer in respect of so many Standby
Offer Shares as will result in Linde Offeror acquiring more than 50% (fifty per cent) of
the Standby Offer Shares;
5.4.1.4. the Afrox Board (i) having, in accordance with the requirements of Section 46 of the
Companies Act, declared the Standby Offer Special Dividend, and (ii) not having
resolved or decided to withdraw the resolution approving the Standby Offer Special
Dividend and/or withhold any portion of the Standby Offer Special Dividend;
5.4.1.5. the receipt of all regulatory approvals required to implement the Standby Offer
Transaction, namely:
5.4.1.5.1. the TRP issuing a compliance certificate in terms of Section 121(b)(i) of the
Companies Act;
5.4.1.5.2. FinSurv grants such approvals with respect to the Standby Offer Transaction as
are required in terms of the Exchange Control Regulations to implement the
Standby Offer Special Dividend and Standby Offer either unconditionally, or
subject to conditions acceptable to Linde Offeror; and
5.4.1.5.3. the JSE and, to the extent required also the NSX, grants such approvals as are
required with respect to the Standby Offer Transaction; and
5.4.1.6. the Implementation Agreement is not terminated in accordance with its terms.
5.4.2. Linde Offeror is entitled to waive or adjust (in whole or in part) any of the Standby Offer
Conditions referred to in paragraph 5.4.1.2, 5.4.1.3, 5.4.1.4(ii) and 5.4.1.6 of this
announcement, by notice in writing delivered to Afrox, provided that Linde Offeror shall
only be entitled to adjust a Standby Offer Condition in such a manner as results in the
fulfilment of such Standby Offer Condition being less difficult or onerous to achieve. The
Standby Offer Conditions stipulated in paragraphs 5.4.1.1, 5.4.1.4(i) and 5.4.1.5 of this
announcement cannot be waived or adjusted.
5.4.3. Save as provided in 5.4.2, neither Linde Offeror nor Afrox may waive any Standby Offer
Condition unless that waiver is agreed to in writing by both Afrox and Linde Offeror and
is permissible in law.
5.4.4. An announcement will be released on SENS and, where required, published in the South
African press as soon as possible after the: (i) fulfilment, waiver or adjustment, as the
case may be, of all of the Standby Offer Conditions; or (ii) non-fulfilment of any Standby
Offer Condition.
6. FUNDING AND BANK GUARANTEE
6.1. The Scheme Special Dividend or the Standby Offer Special Dividend, as applicable, will be
fully funded by cash on hand held by Afrox.
6.2. The Scheme Consideration or Standby Offer Consideration, as applicable, will be fully
funded from a combination of debt and cash available to Linde Offeror.
6.3. Linde Offeror has furnished the TRP with an irrevocable unconditional bank guarantee
issued by FirstRand Bank Limited, acting through its Rand Merchant Bank Division, a
licensed bank in terms of the Banks Act, 1990 (“RMB”), in accordance with Regulation
111(4)(a) and 111(5) of the Companies Regulations, in terms of which RMB has agreed to
pay up to a maximum guaranteed amount equal to ZAR2,870,338,783.02 (two billion, eight
hundred and seventy million, three hundred and thirty-eight thousand and seven hundred
and eighty-three Rand and two Cents) in relation to the Scheme Consideration payable to
all Scheme Participants or Standby Offer Consideration payable to all Standby Offer
Participants, as applicable, if Linde Offeror fails to do so, pursuant to the Scheme
Transaction becoming operative and being implemented or the Standby Offer Transaction
becoming operative and being implemented, as applicable.
7. INTERESTS OF LINDE, LINDE OFFEROR, LINDE DIRECTORS AND LINDE OFFEROR DIRECTORS IN AFROX
ORDINARY SHARES
As at the last practicable date prior to the finalisation of this announcement, being
Thursday, 15 October 2020 (“Last Practicable Date”):
7.1. Neither Linde nor Linde Offeror held any Afrox Ordinary Shares.
7.2. Linde UK SubCo held 173 046 413 (one hundred and seventy three million forty six
thousand four hundred and thirteen) Afrox Ordinary Shares.
7.3. Neither Linde nor Linde Offeror has had dealings in Afrox Ordinary Shares during the six-
month period prior to the Signature Date nor during the period from the Signature Date up
to the Last Practicable Date.
7.4. As at the Last Practicable Date, none of Linde’s nor Linde Offeror’s directors have a
beneficial interest in Afrox Ordinary Shares.
7.5. None of Linde’s nor Linde Offeror’s directors have had any dealings in Afrox Ordinary
Shares during the six-month period prior to the Signature Date and the period from the
Signature Date up to the Last Practicable Date.
8. IRREVOCABLE UNDERTAKINGS AND LETTERS OF SUPPORT
8.1. As at the Last Practicable Date, Linde Offeror has received irrevocable undertakings and
letters of support in connection with the Linde Offer from Afrox Shareholders who
collectively hold approximately 63.5% (sixty three point five per cent) of the Afrox Ordinary
Shares other than the Excluded Shares (“Voting Shares”), as set out below.
8.2. As at the Last Practicable Date, irrevocable undertakings to vote in favour of the Scheme
Resolution and Delisting Resolution at the General Meeting and, if the Scheme Transaction
does not become operative, to accept the Standby Offer have been received from the
following Afrox Shareholders, who collectively hold approximately 46.6% (forty six point six
per cent) of the Voting Shares, namely:
Afrox Shareholder No. of Afrox Afrox Ordinary Shares
Ordinary held as a % of the Voting
Shares held Shares
Coronation Asset Management
(Pty) Ltd 30 876 030 22.8%
Kagiso Asset Management
(Pty) Ltd 14 598 361 10.8%
Old Mutual Customised Solutions
(Pty) Ltd
7 627 927 5.6%
Ninety One SA
(Pty) Ltd 6 167 043 4.5%
All Weather Capital
(Pty) Ltd 3 993 308 2.9%
Total
63 262 669 46.6%
8.3. As at the Last Practicable Date, Linde Offeror has received letters of support in connection
with the Linde Offer from the following Afrox Shareholders, who collectively hold
approximately 16.9% (sixteen point nine per cent) of the Voting Shares, namely:
Afrox Shareholder No. of Afrox Afrox Ordinary Shares
Ordinary held as a % of the Voting
Shares held Shares
17 593 674 13.0%
Public Investment Corporation
SOC Limited
3 992 628 2.9%
Bateleur Capital
(Pty) Ltd
1 378 720 1.0%
Sanlam Asset Management
(Pty) Ltd
Total 22 965 022 16.9%
9. INDEPENDENT BOARD AND REPORT OF THE INDEPENDENT EXPERT
9.1. Afrox has convened the Independent Board, comprising collectively GJ Strauss, CF Wells,
NV Lila Qangule and NN Gwagwa, who have been appointed as the independent board in
relation to the Linde Offer, comprised the Scheme Transaction and Standby Offer
Transaction, for purposes of the Companies Regulations.
9.2. The Independent Board has appointed Investec Bank Limited, a public company
incorporated under the laws of South Africa with registration number 1969/004763/06, as
the independent expert (“Independent Expert”), as required in terms of Section 114(2) of
the Companies Act and the Companies Regulations, to issue a report dealing with the
matters set out in Sections 114(2) and 114(3) of the Companies Act and Regulations 90
and 110 of the Companies Regulations, in respect of its opinion on whether the terms and
conditions of the Scheme, in the context of the Scheme Transaction, and Standby Offer, in
the context of the Standby Offer Transaction, are fair and reasonable to
Afrox Shareholders.
9.3. The Afrox Board has also appointed the Independent Expert, in accordance with Paragraph
1.15(d) as read with Schedule 5 of the JSE Listings Requirements, to issue an opinion on
whether the Standby Offer, in the context of the Standby Offer Transaction, is fair to Afrox
Shareholders.
9.4. The final report of the Independent Expert prepared in accordance with Section 114(3) of
the Companies Act, Regulations 90 and 110 of the Companies Regulations and Paragraph
1.15(d) as read with Schedule 5 of the JSE Listings Requirements, respectively, will be
provided in the Circular and will not be withdrawn prior to the publication of the Circular.
9.5. Having considered the terms and conditions of the Scheme and the Standby Offer, the
Independent Expert has, in its draft report, concluded that:
9.5.1. the terms and conditions of the Scheme, in the context of the Scheme Transaction, and
the Standby Offer, in the context of the Standby Offer Transaction, are fair and
reasonable to Afrox Shareholders, as each of these terms is contemplated in the
Takeover Regulations; and
9.5.2. the terms and conditions of the Standby Offer, in the context of the Standby Offer
Transaction, are fair to Afrox Shareholders, as this term is contemplated in the JSE
Listings Requirements.
10. OPINION AND RECOMMENDATION OF THE INDEPENDENT BOARD AND AFROX BOARD
10.1. The Independent Board, after due consideration of the draft report of the Independent
Expert, has determined that it will place reliance on the valuation performed by the
Independent Expert for the purposes of reaching its own opinion regarding the Scheme
Transaction and the Scheme Consideration and the Standby Offer Transaction and
Standby Offer Consideration, respectively, as contemplated in Regulation 110(3)(b) of the
Companies Regulations. The Independent Board has formed a view on the value of Afrox
Ordinary Shares, which accords with the value of Afrox Ordinary Shares contained in the
Independent Expert's draft report, in considering its opinion and recommendation. The
Independent Board is aware of those factors which are difficult to quantify or are
unquantifiable (as contemplated in Regulation 110(6) of the Companies Regulations) which
were considered by the Independent Expert and referred to in its draft report, and has taken
such factors into account in forming its opinion.
10.2. The Independent Board, taking into account the draft report of the Independent Expert, has
considered the terms and conditions of the Linde Offer and the members of the Independent
Board are unanimously of the opinion that:
10.2.1. the terms and conditions of the Scheme including in particular the Scheme
Consideration, in the context of the Scheme Transaction, are fair and reasonable insofar
as Afrox Shareholders are concerned; and
10.2.2. the terms and conditions of the Standby Offer including in particular the Standby Offer
Consideration, in the context of the Standby Offer Transaction, are fair and reasonable
insofar as Afrox Shareholders are concerned.
10.3. The Afrox Board, taking into account the draft report of the Independent Expert, confirms
that the Standby Offer, in the context of the Standby Offer Transaction, is fair insofar as
Afrox Shareholders (excluding any related parties to Linde Offeror) are concerned.
10.4. As at the date of this announcement, the Afrox Board has not received any firm intention
letters, other than the offer in respect of the Linde Offer from Linde Offeror set out above.
11. INDEPENDENT BOARD AND AFROX BOARD RESPONSIBILITY STATEMENT
The Independent Board and Afrox Board collectively and individually accept responsibility
for the information contained in this announcement which relates to Afrox and confirms that,
to the best of their knowledge and belief, such information which relates to Afrox is true and
this announcement does not omit anything likely to affect the importance of such
information.
12. LINDE OFFEROR BOARD RESPONSIBILITY STATEMENT
The board of directors of Linde Offeror accepts responsibility for the information contained
in this announcement which relates to Linde Offeror and confirms that, to the best of its
knowledge and belief, such information which relates to Linde Offeror is true and this
announcement does not omit anything likely to affect the importance of such information.
13. IMPORTANT DATES AND TIMES RELATING TO THE SCHEME TRANSACTION AND
STANDBY OFFER TRANSACTION
Further details relating to the Linde Offer and the related salient dates and times will be
published on SENS and in the South African press in due course.
Johannesburg
Friday, 16 October 2020
Transaction Sponsor and JSE Sponsor to Afrox Financial advisor to Linde
ONE CAPITAL RMB
Legal advisor to Afrox Legal advisor to Linde
ENSafrica BOWMANS
Independent Expert to Afrox
INVESTEC
THE LINDE OFFER, IS NOT BEING MADE, DIRECTLY OR INDIRECTLY, IN OR INTO, OR BY USE OF THE MAILS
OF, OR BY ANY MEANS OR INSTRUMENTALITY (INCLUDING, WITHOUT LIMITATION, TELEPHONICALLY OR
ELECTRONICALLY) OF INTERSTATE OR FOREIGN COMMERCE OF, OR ANY FACILITY OF THE NATIONAL
SECURITIES EXCHANGES OF ANY JURISDICTION IN WHICH IT IS ILLEGAL OR OTHERWISE UNLAWFUL FOR
THE OFFER TO BE MADE OR ACCEPTED, INCLUDING (WITHOUT LIMITATION) AUSTRALIA, CANADA, JAPAN
AND THE UNITED STATES (ANY SUCH JURISDICTION, A “RESTRICTED JURISDICTION”), AND THE LINDE
OFFER CANNOT BE ACCEPTED BY ANY SUCH USE, MEANS, INSTRUMENTALITY OR FACILITY OR FROM
WITHIN A RESTRICTED JURISDICTION. ACCORDINGLY, NEITHER COPIES OF THE OFFER CIRCULAR NOR
ANY RELATED DOCUMENTATION ARE BEING OR MAY BE MAILED OR OTHERWISE DISTRIBUTED OR SENT
IN OR INTO OR FROM A RESTRICTED JURISDICTION, AND IF RECEIVED IN ANY RESTRICTED
JURISDICTION, THE OFFER CIRCULAR SHOULD BE TREATED AS BEING RECEIVED FOR INFORMATION
PURPOSES ONLY.
Date: 16-10-2020 05:40:00
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